Contextualising TKs EoFs and GRs
To date, IPRs issues pertaining to TKs, EoFs and GRs have pervaded virtually all policy areas encompassing the food and agriculture sector, commerce, education and culture, healthcare and medicines, sustainable development and environmental management, human rights and integrity, etc. It is for these reasons that we seek to unravel the intrinsic nature and scope of TKs, EoFs and GRs as IPRs worthy of effective and adequate protection at parity with conventional branches.
The concept of TKs
The concept of TKs encompasses all conceivable tradition-based literary, musical, artistic and scientific work to include scientific discoveries; inventions; designs; trademarks, names and symbols; trade secrets; musical performances and dances etc. Key to this concept is the term tradition-based, which means TKs are knowledge systems, creations, innovations and cultural expressions which have been transmitted from generation to generation. In this sense, they are identified with a people or its territory’s livelihood and constantly evolve in response to changing environment.
As such the uniqueness of traditional knowledge lies in its various components which are symbolic of a deeper order of a belief system cemented in the community’s co-operative creative effort through which its history, beliefs, aspirations, aesthetics and functionality are transmitted. In tandem therewith it performs socio-economic, organisational and developmental functions of a country, hence promotes national cohesion and identity.
Unfortunately, the effective protection of TKs is confronted by a litany of endogenous and exogenous challenges. These include, among others:
The reluctance of the younger generation to learn and embrace old ways, exacerbated by the encroachment of foreign cultures which erode traditional practices through acculturation.
The absence of properly documented traditional knowledge too leads to absence of willing heirs. Under such a scenario we witness a situation whereby the death of a holder of TKs means the demise of such knowledge.
Lack of respect and appreciation of TKs by modern day reductionist approach to seeking solutions. The attitude is that any information not deducted under clinical conditions by scientific methods is either suspect or inferior.
Some vernacular references to TKs carry with them negative connotations. In view is the denigrating of our traditional medicines as “primitive” and its practitioners “quacks” while ironically embracing the Chinese “Tiens”. Ridiculous, isn’t it? For both are traditional herbal medicines.
Holders of TKs continue to witness their creativity misappropriated, whether in the arts, music, literature or modern science and technology due to lack of experience with formal IP systems, unified voice, proactive national policies, compounded by economic dependency.
Expressions of folklore
Folklore is a sub-set of TKs. Its importance lies in that it is a cultural heritage which represents cultural identity through self-expression. As such it is a living functional tradition in which traditional culture and knowledge are expressed or manifested either in tangible or intangible form. Others are:
Verbal or word expressions such as stories, legends, riddles, epics, poetry, signs, names, symbols etc;
Musical expressions such as songs and instrumental music like our “mbakumba” “ngororombe”, etc
Body movement or action as in plays rituals, dances, eg “shangara” etc; and
Tangible expressions in the sense that they are incorporated in material form such as drawings designs, paintings, carvings, pottery, costumes etc.
Expressions of folklore are more prone to improper exploitation or misappropriation by predators than TKs owing to increased globalisation in travel and trade, coupled with revolutionised technologies in sound and audiovisual recording, broadcasting, cinematography, cable television and digital communication systems.
Further, by virtue of their products being of creative contributions, usually of unknown members of a number of subsequent generations, and often times a fusion of various cultural heritages, their protection under conventional legislative frameworks becomes very difficult as their authors are unknown and their dates of publication equally difficult to determine and thus the duration of protection undeterminable.
Biodiversity and genetic resources
Although the terms biodiversity and genetic resources are frequently used interchangeably, the two are conceptually different. Whereas biodiversity refers to the genetic variation of biological resources, genetic resources refers to the encoded genetic information in the various biological resources in a given ecosystem. In mind here we have genetic information which is valuable in socio-economic development, say, of medicinal, pharmaceutical or agricultural importance.
However, the value of genetic resources has for years been underestimated and overlooked in developing countries, yet it is a well-known fact that 90% of the world’s genetic resources are situate in their boundaries, Africa being the most endowed. It is estimated that Africa is host to about 40 000 highly endemic plant varieties. Of these, more than 4 000 species are known and used for medicinal purposes in the tropics alone.
Is it not a paradox then that developed countries (North) produce medicines for us with our natural resources while we remain perpetually poor, hungry and plagued by disease amidst such abundance?
Surely, we need to urgently cast off this curse, inferiority complex and secondary citizen status. After all when the Almighty God created these resources He knew that these would constitute an adequate ecosystem that would meet all the inhabitants’ needs and wants.
Socio-economic benefits of GRs
Biological resources are critical in all conceivable aspects of human existence and sustenance as sources of food; as traditional (natural) medicines, manufactured drugs and; perform ecological functions in protecting watersheds, regulating climate generating and maintaining soil profiles and textures, absorbing pollutants, maintaining atmospheric quality, providing shade and shelter, and as cultural and aesthetic symbols such as elephants in Hinduism the bold eagle in the US, the lilly in France and our own nearly extinct flame lily and the Zimbabwe bird (hungwe).
Moreover, they inherently possess intrinsic value that exists in themselves independent of their uses.
The interface matrix
The interface between genetic resources and modern science has resulted in its being pervasively incorporated into the production of modern day technology-based products without either derivative benefits or single acknowledgement thereof — patents, utility models, designs, trademarks, copyright, plant varieties inclusive.
Rationale for TKs, EoFs and GRs protection
In view of the above-stated social, economic and political importance and value of TKs EoFs and GRs against a world of disparity in national endowments, piracy is inevitably a menace. Accordingly, the legal protection of these recently recognised phenomena is justified on good and meritorious grounds that this would, among other things;
- Enable knowledge holders to benefit from tradition-based creativity, innovativeness and knowledge
- Result in equitable access, exploitation and use of the fruits of such creativity;
- Promoter a wider use and recognition of these; and
- Ensure the collective custodianship and ownership of these creations is not undermined by the conventional concepts of individual creativity, intellectual property rights regimes.
By Richard Pasipanodya